Cartoonery and harm

In response in the comments at Majikthise to the cross-post below on cartoonery, I wrote this (slightly edited to fit the context here),

It is indeed imortant to keep the legal/moral distinction in mind. Not to dissent, but only to add... the legal/moral distinction also has fuzzy boundaries. If law is a codification of morality, jurisprudence is an ongoing project just as is moral inquiry and the sphere of moral considerability. The US used to be a slaveholding society, now slavery is not only illegal, but morally execrable. That happened not because the law somehow changed on its own, but because of the development of powerful moral arguments against slavery that were ultimately seen as so strong as to insist on changes in the law. Hate speech is similar and tests the boundaries between so-called free speech and what causes harm. It does so because there are powerful moral arguments and a broad moral intuition that harm includes not only physical harm, but also other forms of harm - psychological, emotional, etc. The liberal philosophical tradition always intended harm explicitly as both bodily and mental. The issue regarding the cartoons is whether they amount to hate speech, bot legally and morally. I think they do because there doesn't seem to be any other reason to publish them other than to say, like the Danish editor, that there's a concern about self-censorship (which, I've said, always exists). But then we can come up with all sorts of counter-examples to screw up that point (shitting on the Danish flag, etc.). Or the intention to provoke outrage. In the latter case, we have to come to terms with the boundaries of hate speech. And that is not simply to be determined by the speaker, but by those who are the objects of the hate speech. Otherwise, it is indeed meaningless.

...And here me out on this one: THAT is, yes, a question of content. Determining offense or harm caused to other by the agents of that offense or harm is an act of oppression in itself. Slaveholders argued that slavery didn't cause harm because the objects of slavery, slaves, were better off than in their otherwise "barbarian" state and that black slaves were not the same species as white humans. This attitude continued through the civil rights movement - that somehow Jim Crow was justified because blacks were less than human and thus not deserving of the same rights. That is a case of the agents of harm/offense determining for the objects of harm/offense what the content of harm/offense is. And that, folks, has nothing to do with liberty. Trivializing the Danish cartoon affair as "pissing some people off" is a way of avoiding that issue and teeters precariously on the edge of being pretty antiliberal.

Remember, I said nothing about placing legal limits on the Danish editor's freedom to publish whatever. I am claiming that this particular situation is obvious enough that there are other good reasons to limit what one says. Called to justify the decision to publish, the editor's supposed justification is disingenuous or stupid, in this sense. Again, we can come up with plenty of examples and counter-examples about how we self-censor constantly. We, in our private lives, don't call our fathers "motherfuckers." Why not? Freedom of speech, after all. In our public lives - and a newspaper is public - we place even more stringent limitations on speech because our actions don't only affect ourselves but others as well. In the US, we don't print cartoons any more with Sambo figures. Hell, the US press hardly even criticizes the right in even the most benign ways.

Libertarian proponents of "freedom of speech" at all costs simply have to explain why self-censorship is appropriate in some cases and inappropriate in others. The best way to explain this is the liberal one having to do with harm since libertarians can't do it themselves in the end, as I mentioned above in the remark about Nozick (who, brilliant mind and all, got this point). But, to quote Irving Kristol (neocon enemy who's right on this point), "none of us is a complete civil libertarian." We then have to determine what harm is. Morally and legally, harm is not simply about physical harm. This enables us to speak of psychological torture, emotional distress, etc. Discussion about the limits of what counts there is an important discussion. But "freedom of speech" at all costs is the thing that gets dangerous here. If harm doesn't include psychological torture, and freedom of speech includes the ability to torture psychologically, then the at-all-costs claim supports ruining entire lives through psychological torture. The cartoon case isn't this extreme, but what is wrong in this kind of counterexample has to be explained by the libertarian proponent of free-speech-at-all-costs. Both morality and legality, due to practical contingencies and real cases, are not so simple as to sum it all up as "freedom of speech means freedom of speech."

Look, the "totalitarian" accusation notwithstanding (which is ridiculous, by the way - we're not discussing all-or-nothings here; we're discussing gray zones), a liberal society is one that allows both for the testing of limits of legality and morality, where the boundaries between morality and immorality are always open to revision. This allows for the Mapplethorpes and Batailles of the world to flourish. I believe this is a good thing. On the other hand, given such freedoms, we have to take up responsibilities, respect and concern, and tolerance. "Freedom" on its own is a myth, one propagated in the US by inquiry-censoring libertarians on the right and fuzzy-minded liberals on the left. Freedom always comes with responsibility. The mythical version, as if freedom is endowed with supernatural qualities (like natural rights), is what I refer to as meaningless and empty. I get really worried when I see freedom discussed in those terms.

Liberals will never have the upper hand if they continue to trivialize the realities of freedom. Neocons understand the problems here and pretty much freely shape the entire discourse on freedom at present while we liberals while away our time presenting ourselves such cliches as "freedom means freedom."